Adlam v Accident Compensation Corporation - [2017] NZCA 457

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IN THE COURT OF APPEAL OF NEW ZEALAND

CA442/2016
[2017] NZCA 457

BETWEEN	JEREMY CAMERON ADLAM Appellant
AND	ACCIDENT COMPENSATION CORPORATION Respondent

Hearing:	6 April 2017
Court:	French, Cooper and Asher JJ
Counsel:	H G de Groot for Appellant A S Butler and A F Pullar for Respondent
Judgment:	16 October 2017 at 3 pm

JUDGMENT OF THE COURT

AThe application to adduce further evidence is granted.
BWe answer question (a) of the case stated as follows:
Was the High Court correct to find that a failure to treat cannot occur in circumstances where there are no indications for a different treatment course?
Yes.

C The appeal is dismissed.

___________________________________________________________________

REASONS OF THE COURT

(Given by Cooper J)

Introduction

Section 20(1) of the Accident Compensation Act 2001 (the Act) provides cover under the Act for personal injury suffered in New Zealand on or after 1 April 2002. To be covered, the injury sustained must be a personal injury of a defined kind (here, a physical injury)[1] and the injury must be described in one of the paragraphs of s 20(2).
[1]Accident Compensation Act 2001, s 26(1)(b).
Section 20(2)(b) refers to personal injury that is “treatment injury” suffered by the person. This appeal requires the Court to consider what is meant by the term “treatment injury”. That necessitates an examination of both the definition of “treatment injury” in s 32 of the Act and the definition of “treatment” in s 33, which includes a failure to provide treatment or to provide it in a timely manner.[2]
[2]Accident Compensation Act, s 33(1)(d).
The case comes to this Court as an appeal by way of case stated on questions of law under s 163(1) of the Act. The issues have earlier been considered by the High Court,[3] and the District Court.[4] The High Court allowed an appeal by the Accident Compensation Corporation (ACC), overturning the District Court’s decision that there was cover under the Act for treatment injury. Before turning to the questions and the relevant statutory provisions we set out the facts as recited in the case stated by the High Court.

Facts

[3]Accident Compensation Corporation v Adlam [2016] NZHC 1487, [2016] 3 NZLR 497.

[4]Adlam v Accident Compensation Corporation [2015] NZACC 230. The District Court heard an appeal under s 149 of the Act against a review decision.

The facts stated by Gendall J are as follows:
(a)The appellant, Jeremy Adlam, is now aged 16 years. He was born on 20 March 2000. Immediately prior to his birth by emergency caesarean section he suffered a neurological injury described as intra-partum hypoxia which later caused severe cerebral palsy. Prior to that event, the appellant was a healthy, viable child.
(b)The appellant suffers marked neurocognitive disability which affects every area of his daily living, including deficits in terms of mobility, upper extremity function, swallowing and fatigue. His mother acts as his full-time carer.
(c)During her pregnancy with…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] NZCA 457
Decision Date: 16 October 2017 at 3 pm

CaseChat Overview and Summary

The Court of Appeal of New Zealand considered an appeal brought by Jeremy Cameron Adlam against the Accident Compensation Corporation (ACC). The appeal centred around whether a "failure to treat" could occur in circumstances where there were no observable indications for a different treatment course. The case was heard by French, Cooper, and Asher JJ, with counsel for the appellant being H G de Groot and for the respondent A S Butler and A F Pullar. The Court granted the application to adduce further evidence and answered the question posed in the case as affirmatively. The appeal was dismissed.

The legal issue in the case was whether the High Court was correct to find that a "failure to treat" cannot occur in circumstances where there are no indications for a different treatment course. The Court considered the meaning of the words "a failure to provide treatment, or to provide treatment in a timely manner" in s 33(1)(d) of the Accident Compensation Act 2001. The Court found that in order for there to be treatment injury as a result of a failure to provide treatment, it is necessary to show that an alternative treatment that would have prevented the injury suffered could and should have been given, having regard to the clinical indications at the time of the alleged failure. The Court concluded that a departure from what should have been done is inherent in the combination of ss 32 and 33 of the Act, and the relevant provisions properly construed mean that a failure in the sense of omitting to take a step required by an objective standard is necessary.

The Court was not persuaded by the arguments put forward by the appellant that the interpretation of the statutory provisions should be influenced by other provisions in the Act where the legislature had included an explicit reference to a relevant standard. The Court considered that the text of the relevant statutory provisions, when read together, indicated a legislative intent to limit cover for persons who suffer injury while undergoing treatment. The Court found that the High Court was correct to find that a failure to treat cannot occur in circumstances where there are no indications for a different treatment course.

Orders